Talking Points: Discrimination and Hate Crimes

These are designed to equip you with powerful answers to important questions regarding the need for anti-discrimination protections. Originally compiled by MTPC while lobbying for Boston's gender identity ordinance.

1. What does the proposed non-discrimination ordinance do?

   This ordinance would prohibit discrimination in employment, lending, housing, education, and public accommodations on the basis of a person's gender identity or expression. The term "gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self image, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with one's sex at birth. In keeping with recent MCAD rulings (see Question 3), this ordinance would make it impermissible to discriminate against an individual simply because that person does not fit a narrow stereotype of what it means to be a "real man" or a "real woman."

2. What does the proposed Hate Crimes ordinance do?

   This ordinance would add gender expression and identity to the list of bases for hate crimes which would trigger enhancements to funding prosecution of the crime, as well as potential penalty enhancements. The meaning of the term "gender identity or expression" would be the same as in the non-discrimination ordinance.

3. Why is this ordinance needed?

   Persons of gender difference face serious discrimination on the basis of gender identity or gender expression, not only in the workplace, but also in housing, and in public accommodations. A 2003 report released by the Transgender Law Center (TLC) and the National Center for Lesbian Rights, Trans Realities, documented the high rates of discrimination experienced by transgender people. Survey respondents reported discrimination in employment (49%), public accommodation (38%), housing (32%), and health care (31%).

   • People whose gender identity or expression do not conform to stereotypes often face severe discrimination when they try to find a place to live.
   • Many people are denied equal treatment in public accommodations on the basis of gender identity or expression. We are asked to leave restaurants, hotels, stores, medical facilities, and educational institutions. We are denied credit. We are refused access to restroom facilities.
   • Many transgender people are fired after their employers find out about their plan to undergo sex reassignment surgery or learn that they have already undergone such surgery.
   • Every community should take a stand against this invidious gender-based discrimination. Everyone deserves to live and work with equality and dignity. No one should lose their job, or be denied a place to live, because of their gender identity or expression.

   Everyone has a stake in gender freedom, not just transgender-identified people. Stereotypes about gender are harmful to all people. Extending non-discrimination ordinances to cover "gender identity or expression" will benefit all people whose gender challenges traditional stereotypes. This includes not only people who identify as transgender, but women who are denied promotions because they do not wear make-up and men who are harassed in the workplace because they are not "masculine" enough.

4. Isn't this kind of discrimination already illegal? Isn't it covered by sex discrimination laws?

   The case law is not clear on this issue. Despite some recent court decisions to the contrary, many courts have found that laws prohibiting sex discrimination do not apply to transgender people. Because of these conflicting decisions, confusion abounds regarding whether current non-discrimination laws cover gender identity or expression. In October of 2001, the Massachusetts Commission Against Discrimination (MCAD), a state agency, handed down a decision in which it found that the sex discrimination statute in Massachusetts covers discrimination based on gender identity and expression. The MTPC completely supports the MCAD's interpretation and we encourage other agencies and courts to find likewise, but as the law currently stands, protection for gender identity and expression is not guaranteed. With the passage of this ordinance, Boston would simply codify the legal protections identified in this recent MCAD decision. In addition, this ordinance would send a clear message to Boston employers, landlords, providers of public accommodations, and all Boston citizens that all people are entitled to the full protection of the law, regardless of their gender expression. Equally important, this ordinance would communicate to individual people that they have access to legal redress for the discrimination they face. Laws are intended to set policy and send clear messages. Amending Boston's non-discrimination ordinances would clear up any legal confusion and send the message that discrimination is not tolerable.

5. Why does this ordinance propose to add "gender identity or expression" as a new protected category rather than including protections in an expanded definition of "sex"?

   It is important to make "gender identity or expression" a separate category in order to underscore the point that gender identity and expression are of equal importance with other protected categories. In addition, it will be easier to educate the public about discrimination on the basis of gender identity or expression when language is clear and accessible. While many people may never read the text of city and state ordinances, they will see the inclusion of "gender identity or expression" in widely distributed general policy statements listing all the bases on which it is illegal to discriminate.

6. Will this amendment encourage cross-dressing in the workplace?

   Opposition to cross-dressing in the workplace is perhaps the most commonly voiced objection to codifying non-discrimination protection on the basis of gender identity or expression. However, 81 jurisdictions, consisting of millions of people, have already extended their local non-discrimination ordinances or statutes to cover gender identity or expression (see chart for a listing of the jurisdictions) and there is no evidence that such protection leads to any increase in the number of employees who cross-dress on the job.

   • Employers in jurisdictions that have passed similar ordinances have not reported or complained of any such increase in cross-dressing, and human rights departments in those jurisdictions have not been inundated with complaints from cross-dressing employees. The City of Minneapolis has had a gender identity inclusive non-discrimination law since 1975, and there has been no influx of cross-dressers into the workplaces in that jurisdiction.
   • Furthermore, employers would still be entitled to have reasonable, equitable dress codes at their places of employment.
7. Does this mean that women will have to share bathrooms with men, and vice versa?

   This ordinance will prevent employers and proprietors of public accommodations from requiring people to use bathrooms that do not correspond to their gender identity. It will not mean that women will have to share bathrooms with men. All people must have access to safe and dignified bathroom facilities, regardless of their gender identity or expression.

   • The Boston City ordinances currently permit restrooms and other such facilities to be separated by sex. Nothing in this proposed ordinance will change that. What the ordinance will do is prevent the obvious disruptions and problems that arise when people are required to use bathrooms inappropriate to their gender identity, (for example, when transgender women are forced to share bathrooms with men, or transgender men are forced to share bathrooms with women). This ordinance simply will allow individuals to use bathroom facilities based on the gender identity that they "publicly and exclusively assert or express." By adding this language, this ordinance will help resolve awkward bathroom situations, not create them.
   • Allowing individuals to use the restroom that corresponds with the gender identity that they "publicly and exclusively assert or express" makes sense. There is simply no legitimate way to do "anatomy checks" or "chromosomal checks" before determining who can use what restroom.
   • Nothing in this proposed ordinance would alter an individual's reasonable privacy and safety expectations in restrooms. Legitimate safety concerns, of course, need to be addressed regardless of who poses them. Proprietors of public accommodations have an obligation to make restroom facilities safe for all people. However, we cannot let legitimate safety concerns become a proxy for bias and prejudice.
8. Would Massachusetts be going out on a limb here? Is our jurisdiction going to be the first to adopt this kind of law?

   In enacting this proposed ordinance, Massachusetts will join a growing number of local and state governments that have already enacted such protections. As of January 2006, 81 jurisdictions (6 states, 75 cities and counties) in the U.S. have passed non-discrimination laws or ordinances that protect people on the basis of gender identity or expression (see chart).

   • Civil rights legislation protecting gender identity and expression has passed in jurisdictions as varied as Pittsburgh, Seattle, Louisville, New York, Philadelphia, Cambridge, Dallas and many more. The state of Minnesota added gender-inclusive language to its human rights law in 1993 and the state of Rhode Island did the same in 2001. California, New Mexico, Illinois, and Maine have also now passed statewide protections for gender identity and expression.
   • Lucent Technologies, American Airlines, Eastman Kodak, Walgreen's, Xerox, Apple Computers and J.P. Morgan Chase have adopted non-discrimination policies that protect transgender people. Many other businesses, both big and small, have also added gender identity and expression to their equal opportunity policies.
9. What impact will protecting people from discrimination on the basis of gender identity or expression have on how the Registry of Motor Vehicles and other government-sanctioned bodies determine sex for identification purposes?

   The government's determination of an individual's sex for identification purposes does not conflict with protecting them from discrimination on the basis of their gender identity or expression in public accommodations, housing, and employment. However, it does highlight shortcomings in our present means for making a determination of an individual's sex for those individuals for whom such determination encounters conflicting evidence. Hopefully, increased education and awareness of gender diversity will lead to more fairness in opportunity and accomodation across lines of sex and gender.